Carpenter v. US: Cell Phone Thief Is New Digital Privacy Poster Boy

by: The Knowledge Group

June 26, 2018


Timothy Carpenter stole cellphones from Michigan and Ohio retailers, and the crime has led to an important digital privacy case, Carpenter v. United States. At issue: whether police access to the cellular data that tracked Carpenter is unconstitutional. The outcome depends on two major questions:

  • What constitutes voluntarily giving information to a third party, such as a cell phone company?
  • Should police have to show probable cause to get it?

Verizon, AT&T, and other companies annually receive tens of thousands of court-ordered law enforcement requests for customers’ location records.

Law Enforcement View: No Legitimate Expectation of Privacy

Phone users know their location is tracked. And a “third-party doctrine”—that if you share information with a third party (here, the cellular service provider) you’ve lost a reasonable expectation of privacy—was established in 1970s cases U.S. v. Miller and Smith v. Maryland.

The American Civil Liberties Union, representing Carpenter, points out that sharing your location data with cell towers is involuntary. The Cato Institute, the Electronic Frontier Foundation the Reporters Committee for Freedom of the Press back Carpenter’s position, mainly asserting:

  • Surveillance chills everyone’s freedom of speech.
  • The Fourth Amendment should protect phone users’ location data so police must obtain a warrant, based on probable cause, to search for it.
New Doctrine Needed in a Digital Age

The Supreme Court’s stance in Fourth Amendment questions isn’t built for today’s reality, in which cell towers are everywhere, gathering data that can track customers. Justice Sonia Sotomayor, indeed, has called the application of the third-party doctrine “ill-suited to the digital age” because the technology requires customers to reveal many details about ourselves and our movements to third parties during the course of our daily interactions.

A decision against Carpenter could empower law enforcement to use cellular location data to keep track of anyone, but there’s another side to this coin. That power could lead to severe data privacy headaches for law enforcement—as tech developers race to come up with new encryption features that could keep cellular services blocked off from their own customers’ data.

We have a number of webcasts eligible for Continuing Legal Education (CLE) credit, we hope you can join us as we discuss the hot-button issue of the  GDPR Data Privacy laws on July 25. Full details and registration information can be found by clicking here.